Ontario’s new Working for Workers Act is designed to help people achieve a better work-life balance.
But exactly how that happens will, in some ways, be left up to individual companies to decide.
Prompted in part by pandemic lockdown restrictions that forced a shift to remote work and blurred the line between office and personal time, Bill 27 was passed on Tuesday and will become law when it receives royal assent from the lieutenant-governor.
The legislation includes a requirement that workplaces with 25 or more employees implement a written policy about “disconnecting from work.”
Muneeza Sheikh, a senior partner at employment and labour law firm Levitt Sheikh, spoke to the Star about how the legislation will impact both employees and employers.
/https://www.thestar.com/content/dam/thestar/news/ontario/2021/12/02/how-do-i-report-my-boss-can-i-still-ask-a-colleague-questions-after-hours-a-lawyer-answers-common-questions-about-ontarios-new-work-rules/muneeza_sheikh.jpg)
Q&A
When does this new legislation take effect?
So, as I understand it, employers don’t have any pressure to actually have the policy in place until six months after the Workers Act receives royal assent, so they have a full six months after assent is received, plus the 2022 grace period.
Regulations about enforcement and the scope of the legislation and the scope of new requirements, which class of employees are excluded, are expected to be unveiled (soon).
What does this mean for employers?
This is what I’m saying to my employer clients: While certainly the bill is to benefit employees, there’s no intention to completely respond in a punitive manner towards employers at all. There’s going to be lots of time to get this right.
How will these new rules be enforced?
There are a lot of employment lawyers scratching their heads, and I don’t think we’re going to get the full scope on something like this until we have a few published decisions.
This is conjecture, but I suspect what’s going to happen is following a complaint, there will be an investigation by the Ministry of Labour and there might be a warning and if you have the same employer with the same violations over and over again, I think that’s when we’re going to start getting into monetary fines.
When looking at violations of this nature, generally speaking, that’s what the punitive landscape looks like.
What does this mean for employees? What if their boss keeps emailing outside of work hours or if they choose to keep working late?
There’s been so much discussion during the pandemic about employees working from home, having a lot of people really suffering from mental health issues during this very difficult time and the stress associated with not being able to hold on to their job. We saw hundreds of thousands of employees unlawfully laid off during the pandemic. So, in my view, the Working for Workers Act is the government’s response to saying it’s important for you to hold on to your job, but at the same time, it’s extremely important for you to have a wholesome life outside of work.
The biggest pitfall I see is that there’s going to be no way to measure employees who choose to check out versus the ones who want to continue to work because that’s their preference.
There will be employees in the workplace who, by nature or preference, may work longer hours, may engage in work-related communications after work hours, and then you may see them soaring in the workplace in terms of professional development. And then the question becomes are there going to be complaints against employees saying, well, everybody’s supposed to disconnect from work. The measuring stick for employees might change.
What about workplaces with fewer than 25 employees?
I think the spirit of the legislation is to apply to everyone. But in terms of enforceability, it would only be enforceable in relation to employers with 25 or more employees, they would have to develop these written policies.
What other sections of this legislation are worth noting?
The other section that was probably the most interesting to me as an employment lawyer is this restriction on noncompetition provision. It’s kind of a provision in this legislation that is moot-ish. Because most employment lawyers will tell you that noncompetition provisions, generally, in Canada, are quite difficult to enforce ... because they unfairly restrict a person’s activity after they leave a company.
We’re seeing companies struggle to retain employees. Perks like free gym memberships or a cool office space vibe don’t carry the same weight in a post-pandemic world. What are some of the things you think employees are looking for and what can companies do to keep great workers from leaving?
I think employee morale is always boosted through flexibility. The narrative has always been, prior to the pandemic, that those who work remotely are not working as effectively as those who are in the office. And in some ways, the pandemic has really worked to demystify that notion.
If you can offer some sort of staggered approach, like you see a number of private and public sector employees doing, that part remote and part working in the office, I think a lot of employees really do enjoy a hybrid model.
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